When DE&I Are Under Attack

Jennifer Carr: Welcome to On Record PR, where we dive deep into the strategies and tactics that matter most to law firm leaders. It is Monday, March 10, 2025. I am Jennifer Simpson Carr, and today, I am joined by my incredible colleague, Elizabeth Ogilvie. Good morning, Elizabeth.

For our listeners, this is the first time that they are hearing or seeing you. And I think important context for today’s conversation is that Elizabeth is really our agency’s resident, HR expert / guru. She is a Sherm certified professional, but also has years of experience, having worked in HR in-house for a law firm and then also for our agency on the communication side, really bringing that HR hat and lens into all the communications and risk management, reputation management work that we do. Elizabeth was a practicing attorney, then an in-house HR and communications professional on the law firm side, and now is with the agency.

It’s important to note that while she remains a licensed attorney, our conversation today is not legal advice. It is purely from a reputation management and crisis communications perspective. So, with that out of the way, we can dive into a conversation today, which is the fact that DEI programs are now officially under attack in a more meaningful way, I think, than they had been prior to even last Friday. For those of us in the legal profession and legal industry, you know, two executive orders have come out naming specific law firms, and the latest specifically targeting DNI programs for large firms and influential firms. So Elizabeth and I are really going to talk today about what that means and what law firms should be considering in these uncharted waters.

Elizabeth, first, let’s clarify what executive orders are. I know the feeling in the legal industry and outside in the general world is that the law is being rewritten overnight. So, let’s talk for a minute about what executive orders actually do.

Elizabeth Ogilvie: So executive orders are not legislative policy. They don’t supersede, erase, or eliminate any federal laws, right? Title VII is still in effect. Your EEOC language on your website is still legal, and you should leave it there. There are a lot of things that these executive orders do not impact. Bostock is still in effect. It doesn’t impact affirmative action for disability and veteran status right now. So, a lot of these executive orders have had a lot of uncomfortable impact, but they haven’t impacted employment law.

Jennifer Carr: So basically, what I’m hearing is that executive orders haven’t overtaken other rules of law that are currently in place, but what they are doing is giving us in the legal community a big warning sign of how the administration and the DOJ are approaching their enforcement of potentially certain programs.

Elizabeth Ogilvie: Yes, and what I would say is, if your DEI program, diversity, whatever you call it at your firm, if it was legal before January 20, it’s still legal. The executive orders have not changed that. And I think that’s important to just take a deep breath and understand that.

Jennifer Carr: Yeah. So what’s happening now is firms are coming to us or their strategic partners and saying, you know, “We need to engage you for managing and kind of communicating what’s happening around our DEI programs. Where do we start?” And so, I just want to ask you, what is the position, the start, the starting line that we are taking when our clients and new firms are coming to us asking for this conversation?

Elizabeth Ogilvie: Great question. The first thing we advise is to conduct a risk assessment. You need to understand what your risk tolerance is in this environment. Before I get into that, I’d encourage anybody who has not to please go read the ABA statement that it released. I concur with what the ABA has said. I strongly support it. That said, the first thing you need to do is figure out who you are as an organization, right? Who are your stakeholders? Are your current HR programs, including diversity initiatives, aligned with their objectives? Are you staying true to your vision and your values with your DEI programs or your diversity programs? That is a good starting point to figure out how and if you want to change your programs.

Jennifer Carr: That’s great advice. And the initial reactions that we heard, and I think that many of us felt really varied. We engaged in conversations where a lot of questions emerged, like, “What puts our firm at risk? Should we scale back? Should we wait until we have more clarity? How do we maintain our commitment to diversity while managing the legal risks that are potentially involved here?” So let’s talk about how firms can assess their current DEI initiatives to identify areas that may draw scrutiny or under, you know, legal challenges under these investigations.

Elizabeth Ogilvie: Well, the first thing I would say is that I think a knee-jerk reaction is just to take everything off your website that says diversity on it, and that is a mistake. And on the top line, I just want to mention, as I mentioned earlier, about employment laws still in effect, you could be subjecting yourself to traditional employment discrimination claims if you just remove everything from your website, including your standard EEOC language about hiring practices. So please don’t do those things like I said, this is the time to take a deep breath and kind of do a holistic analysis of all your programs.

You should know every single one of your diversity or inclusion programs. You should know how they intersect. Who are the leaders? Who are the people in your law firm that are affected by them, right? That is a good starting point because what we have learned from the federal district court in Maryland is that for the merit-based EO, which, the full name escapes me right now. The court found that it’s violative of the First Amendment what they’re asking of private companies, but what they also found was that it was okay to investigate all of these programs, and for Pam Bondi and the US AG’s office to develop an investigative program. So those are the things we need to be focused on, right? When we stop, start at the top, and understand all of our programs, where they touch, and who they impact, then we can have a better idea of where you need to start with your own internal analysis.

Jennifer Carr: Something I’ve learned from this agency and really kind of lives with me every day is that we talk about how, in crisis, there are opportunities. And so we’re going to pause here for a message from our sponsor, and when we get back, I’d like to chat about some of the opportunities that we’ve identified where firms can potentially take that holistic view, as you said, Elizabeth, and potentially create opportunities from within.

Jennifer Carr: Elizabeth, we’re back from our sponsor message, and I want to pick up on opportunity and crisis and really ask you to provide an example of the way that a firm could potentially evaluate their DEI, or programs that fall under their DEI efforts and changes that might be available to create more opportunity at the firm.

Elizabeth Ogilvie: Sure. So anecdotally, I have read that a lot of firms, a lot of private companies, not law firms, are dropping their mentorship programs, specifically mentorship programs that support women in leadership. I don’t recommend taking those kinds of steps. A mentorship program is a perfect opportunity for you to go in and look at what you could change. A good example is making your mentorship programs skilled-based, meaning that you would have had to, for example, chair your first trial. You would have had to land your first client by yourself.

If the mentorship program was business development oriented, these are benchmarks that anyone can achieve that are not based on race. For example, you can open up your mentorship programs to women and men, and that makes it more equitable for everyone. I see no reason why we cannot strengthen these programs by making them even more inclusive. By making them more inclusive, you’re meeting these objectives and the intent of what is in these executive orders without compromising your values.

Jennifer Carr: If I can kind of infer from something you just said, it sounds like opening these programs up more broadly, only will benefit more of your great talent and opportunity. If that is a direction your firm chooses to go.

Elizabeth Ogilvie: Yes, and the other thing I counsel is that you need to be careful about keeping your top performers, making sure that your attorneys and staff still want to work for your law firm, and that you’re not driving people away by doing rash things like eliminating entire programs. Going back and making adjustments and making things more equitable for all makes a lot more sense, and will help you retain those people.

Jennifer Carr: Yeah. Talent retention is such a big topic of conversation right now, and this obviously is something that impacts talent so substantially. You know, where do firms stand on these things? I know that there have been headlines around talent wars and attracting and keeping great talent, so this is definitely a consideration in that regard. Let’s go back to a more macro level. In the first 30 days that the President was in office, more than 70 executive orders were signed. Three of those specifically targeted DEI efforts in the language. I want to give like a hypothetical.

So a law firm called us today and said, “You know, we’re not really sure what to do. Where to start?” Do we assess everything that we are working on, everything that we’ve worked so hard and poured resources into, and start making changes? Or do we hit the pause button and wait day by day to see how things unfold? Where do we start with a firm that’s coming to us for the first time and has these questions about a path forward?

Elizabeth Ogilvie: Good question. The first thing I would say, kind of bringing back in what I said at the top, if your programs were legal before January 20, they’re still legal. So that is the first. Secondly, what is your risk tolerance? That has got to be the first question that you ask. If you have a high-risk tolerance and you’re okay with keeping your DEI programs and making subtle adjustments, then that is a good course of action for you. But I think you cannot make these decisions about changing major programs without figuring out where you are as a law firm, what your stakeholders expect, and what your employees need. How can you support your staff and your attorneys the best?

Jennifer Carr: It sounds like it’s time for a lot of listening and a lot of internal conversations about where we stand on things as a firm. I know that we are still waiting to see how, collectively, law firms will respond to what’s transpired over the past two weeks. I know we’ve all shared individual posts where people have come out very strongly in support of the ABA and of these two firms that were named. Are there companies that are exemplars or have come out with a statement or a stance that we can point to?

Elizabeth Ogilvie: Costco has done a beautiful job with this, and I do think we should put that quote in the show notes so that everyone can read.

“Having a heterogeneous employee base that enhances members’ identification with us is important. Our commitment to inclusion, however, does not and has never included quotas or systematic preferences, nor does it mean compromising merit,” he said. “The demands of our business and our steadfast commitment to serve our members mean that we cannot afford to do anything but hire and promote the most qualified individuals.” -Hamilton James, Board Chairman, Costco

Jamie Dimon has also come out and said that JP Morgan is not going to change their diversity and inclusion initiatives. And I think that those are wonderful exemplars. You do not need to throw the baby out with the bath water. These programs have been around for 20 years or more, and, you know, I think objectively, when they are measured correctly, have shown they’re better for the workforce in general, and they support your attorneys and your staff in important and meaningful ways.

Jennifer Carr: Yeah, I think that’s probably the key thing here. We had a podcast episode with Renee Branson, and we’ll link to that here as well. Something she said that has stuck with me, particularly for underrepresented and marginalized groups, is that stability in the workplace is invaluable. And where firms stood yesterday on their positions, you know, taking that stance today and strengthening that stance in the future only helps those individuals and those groups feel supported and helps them through a time where the world is uncertain around them.

Listen to Episode 162: How Law Firm Leaders Can Foster Safety and Trust in Times of Change

I want to thank you so much for sharing your insights with us today. I really valued the chance to coordinate with you on prepping for this podcast and then having the conversation today. It’s been really helpful for me, and I want to thank our listeners. Thank you for tuning in today. If you’ve enjoyed the show, please leave a review on iTunes and follow us wherever you listen to podcasts, and we will see you next week.